Section 54 of the Constitution Act, 1867

Royal Proclamation which brought the Act into force on July 1, 1867

Section 54 of the Constitution Act, 1867 (French : article 54 de la Loi constitutionnelle de 1867), is a provision of the Constitution of Canada relating to taxation and appropriation legislation in the Parliament of Canada. It provides that the House of Commons shall not consider a bill relating to taxes or appropriation unless it is accompanied by a recommendation from the governor general (in effect, the federal Cabinet) that the House of Commons consider the bill. The recommendation for money bills is one of the ways in which responsible government is implemented, ensuring that the federal finances are controlled jointly by both the executive and legislative branches.

The Constitution Act, 1867 , is the constitutional statute that established Canada. Originally named the British North America Act, 1867 , the act continues to be the foundational statute for the Constitution of Canada, although it has been amended many times since 1867. It is now recognised as part of the supreme law of Canada.

Constitution Act, 1867

Main article: Constitution Act, 1867

The Constitution Act, 1867 , is part of the Constitution of Canada and thus part of the supreme law of Canada. ^{[1] [2]} It was the product of extensive negotiations by the governments of the British North American provinces in the 1860s. ^{[3] [4]} Following those conferences, there were consultations with the British government in 1867. ^{[3] [5]} The Act sets out the basic constitutional structure of Canada, including creating the federal government and defining the powers of the federal government and the provinces. It was enacted in 1867 by the British Parliament under the name of the British North America Act, 1867. ^{[6] [7]} In 1982, the Act was brought under full Canadian control through the Patriation of the Constitution and was renamed the Constitution Act, 1867. ^{[2] [6]} Since Patriation the Act can only be amended in Canada under the amending formula set out in the Constitution Act, 1982 . ^{[8] [9] [10]}

Text of section 54

Section 54 reads:

Recommendation of Money Votes
54 It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill, for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed. ^[11]

Section 54 is found in Part IV of the Constitution Act, 1867, dealing with the federal legislative power.

Legislative history

Section 54 has its origins in a standing order of the British House of Commons, passed in 1713, which provided that the House of Commons would not consider tax bills or spending bills without a Crown recommendation that the bill be considered. ^{[12] [13] [14]} Lord Durham, in his Report on British North America, recommended that the same principle be included in the proposed union of Lower Canada and Upper Canada. As a subsequent editor of the Report summarised, "no money votes were to be proposed except with the consent of the Crown, i.e., by the responsible ministers". ^[15] That principle was included in the Union Act, 1840, which required that the Parliament of the Province of Canada not consider a tax or spending bill without a recommendation from the Governor General. ^[16]

When Confederation was being debated, the Quebec Resolutions of 1864 and the London Resolutions of 1866 both included a requirement for a recommendation from the Governor General for tax and spending bills. ^{[17] [18]} The provision was included in all of the drafts of the bill leading up to the passage of the Constitution Act, 1867. ^[19] Although the recommendation is made by the Governor General, it is often referred to as the "royal recommendation". ^{[12] [20] [21]}

Section 54 has not been amended since the Act was enacted in 1867. ^[11]

Purpose and interpretation

Historical British origins

Section 54 has its origins in British constitutional principles relating to public finances. After the English Civil War and the passage of the Bill of Rights, it was firmly established that legislation enacted by Parliament was needed for all taxes and all appropriations of public funds. The English House of Commons took the lead on this point, and gradually acquired primary control over public finances. Bills to impose taxes or appropriate public funds from the treasury, commonly called "money bills", had to originate in the House of Commons, and the monarch could not personally impose taxes or appropriate funds. ^{[20] [21] [22]}

However, if every member of the House of Commons had an equal opportunity to introduce money bills, there would not be firm budgetary controls. In order to address this issue, the House of Commons passed a rule in 1713 stating that the House would not consider any money bill unless it came with a monarch's recommendation that the bill was essential for the public finances. ^{[12] [13]} The effect of the rule was to give joint control over money bills to the executive and legislative branches. This procedural rule is continued today as part of the Standing Orders of the British House of Commons. ^[14]

British North America

Lord Durham, who proposed that the royal recommendation for money bills be implemented in British North America

Control over the public finances became a major point of contention in the British North American colonies in the 19th century, particularly in Lower Canada and Upper Canada. Disputes between the elected legislative assemblies and the governors, appointed by the British government, became a routine aspect of public life. ^{[20] [23] [24] [25]}

Following the Rebellions of 1837–1838 in Lower Canada and Upper Canada, Lord Durham in his Report on British North America recommended that the same principle be adopted in the colonies as in the British Parliament: money bills were to be approved by the elected Assemblies, but only on recommendation from the governor. ^[26] This policy was established in the Union Act, 1840 , which merged the two Canadian provinces into the single Province of Canada. The Union Act provided that money bills had to originate in the elected Legislative Assembly of the new province, but only on a recommendation from the governor. ^[16] Control of the finances by the Cabinet was an essential component in the development of responsible government. ^[20]

Confederation

Fathers of Confederation at the Quebec Conference, 1864

When Canada was created in 1867, this principle of joint control over the public finances was well-established in both the United Kingdom and the British North American provinces. Following the example of the Union Act, the requirement for a royal recommendation was set out in Section 54 as a constitutional requirement, not simply as a parliamentary rule. The recommendation to the House of Commons is made by the Governor General, not the monarch. ^{[11] [27]}

Current operation

The House of Commons, where all money bills must be introduced

The Senate, where money bills must be passed

Under the principle of responsible government, the recommendation is authorised by the federal Cabinet. A Cabinet member passes the Governor General's recommendation to the Commons, now usually by means of a written notice accompanying a bill at any stage before third reading, the final vote on a bill in the Commons. The recommendation must be given for any new financial legislation, and again for any proposal to change an existing tax or appropriation bill in any significant fashion. ^{[20] [22]}

The effect of Section 54 on private member's bills has changed over the years. Formerly, if it appeared to the Speaker of the Commons that a private member's bill would require the spending of public money or an increase in taxes, the Speaker would rule the bill out of order when it was first introduced. However, changes to the procedural rules regarding private member bills in 2003 have increased the possibility that a private member's bill will come to a vote. That change, in turn, has resulted in a change in approach to the royal recommendation. Now, the Speaker will recognise that the sponsor of the private member's bill has the right to have it debated, but will urge the sponsor to seek the royal recommendation. If the royal recommendation has not been given by the time the bill is ready for final debate on third reading, the Speaker will rule it out of order. ^{[20] [21]}

There is uncertainty regarding how far Section 54 may limit the authority of the Senate and private members with regard to money bills because no court action has clarified its precise scope. ^[21]

The precedents from the Commons are ambiguous, and it is unclear whether the Senate can change a money bill that the Commons has passed to increase spending or taxation. In some cases, if the Senate has amended a money bill passed by the Commons, the Speaker of the House of Commons has ruled the amended bill out of order and refused to allow it to be considered. On other occasions, the Speaker has simply pointed out the issue in debate to allow the members of the House of Commons to decide. In some cases, the Commons has rejected Senate amendments, as a breach of the powers of the House of Commons, but in other cases, the Commons has proceeded to consider the amendments. ^[20]

It is clear that the Senate can amend a money bill to decrease spending or taxation. ^[20]

Related provisions

Section 53 of the Act provides that all money bills must be introduced in the House of Commons.

Section 90 of the Act provides that section 54 also applies to the provincial legislatures.

References

1. Peter Hogg and Wade Wright, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters (looseleaf; current to 2022), para. 1:4.
2. Constitution Act, 1982, s. 52, s. 53, and Schedule, item 1.
3. Donald G. Creighton, The Road to Confederation (Toronto: Macmillan Publishing, 1864; revised ed., Oxford, Oxford University Press, 2012.) online
4. Christopher Moore, 1867 — How the Fathers Made a Deal (Toronto: McClelland & Stewart, 1997).
5. Gilding, Ben (2018). "The Silent Framers of British North American Union: The Colonial Office and Canadian Confederation, 1851–67". Canadian Historical Review. 99 (3): 349–393. doi:10.3138/chr.2017-0053. Archived from the original on June 17, 2022. Retrieved May 25, 2024.
6. Hogg and Wright, Constitutional Law of Canada, para. 1:2.
7. British North America Act, 1867, 30 & 31 Victoria, c. 3 (UK).
8. Hogg and Wright, Constitutional Law of Canada, para. 4:1.
9. Constitution Act, 1982, Part V.
10. Canada Act 1982 (UK) 1982, c. 11, s. 2.
11. Constitution Act, 1867, s. 54.
12. Keyes, John Mark. ""When Bills and Amendments Require the Royal Recommendation: A Discussion Paper and Guidelines"". Canadian Parliamentary Review. 20 (4). Archived from the original on February 25, 2021. Retrieved May 25, 2024.
13. C. Gordon et al. (eds.), Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 20th ed. (London: Butterworths, 1983) at 762.
14. Standing Orders of the House of Commons - Public Business 2019 (London: House of Commons, 2019), r. 48 (first enacted June 11, 1713).
15. Charles Lucas (ed.), "Introduction", Lord Durham's Report on the Affairs of British North America, (Oxford: Clarendon Press, 1912 (reprint)), vol. I, p. 149.
16. Union Act, 1840, 3 & 4 Vict., c. 35 (UK), s. 57.
17. "Quebec Resolutions, Resolution 49". Archived from the original on June 30, 2023. Retrieved June 25, 2023.
18. "London Resolutions, Resolution 48". Archived from the original on March 31, 2023. Retrieved June 25, 2023.
19. G.P. Browne (ed.) Documents on the Confederation of British North America (Montreal and Kingston: McGill-Queen's University Press, 2009; reprint of the 1969 edition, with introduction by Janet Ajzenstat), "Rough Draft of the British North America Bill" (undated), clause 49 (Document 78, p. 242); "Initial Draft of the British North America Act" (January 23, 1867), clause 29 (Document 79, p. 254); "Third Draft of the British North America Act" (February 2, 1867), clause 47 (Document 84, p. 271); "Fourth Draft of the British North America Act" (undated), clause 43 (Document 85, p. 285); "Final Draft of the British North America Act" (February 9, 1867), clause 55 (Document 86, p. 314).
20. Bosc, Marc; Gagnon, André, eds. (2017). "Chapter 18: Financial Procedures". House of Commons Procedure and Practice (3rd ed.). Ottawa: Government of Canada. Retrieved May 26, 2024.
21. Small, Joan (1995). "Money Bills and the Use of the Royal Recommendation in Canada: Practice versus Principle?" (PDF). Ottawa Law Review / Revue de droit d'Ottawa. 27 (1): 22–58. Retrieved May 26, 2024.
22. W.H. McConnell, Commentary on the British North America Act (Toronto: MacMillan Co. of Canada, 1977), pp. 131–132.
23. Fernand Ouellette, Lower Canada 1791–1840: Social Change and Nationalism (Toronto: McClelland and Stewart, 1980), pp. 197–200, 213, 253–255.
24. Gerald M. Craig, Upper Canada: The Formative Years, 1784–1841 (Toronto: McClelland and Stewart, 1963), pp. 191, 211–212.
25. Donald G. Creighton, "The Struggle for Financial Control in Lower Canada, 1818-1831", Canadian Historical Review, vol. 12, no. 2 (June 1931): 120–144.
26. Charles Lucas (ed.), Lord Durham's Report on the Affairs of British North America, (Oxford: Clarendon Press, 1912 (reprint)), vol. II, pp. 92–93, 286–287, 328.
27. McConnell, Commentary on the British North America Act, p. 106.